Judgment : Defendants 3 to 5 are the appellants in this appeal against the judgment and decree dated 24. 1981 in O.S.No.122 of 1977 on the file of Sub Court, Kancheepuram, decreeing the suit as prayed for by the plaintiff-lst respondent herein and thereby setting aside Ex.A-2 appellate order dated 23. 1977 of the 1st defen-dant-2nd respondent herein (The Commissioner, H.R. & C.E.) in A.P.No.29 of 1976 on his file and also the original order in O.A.No.37 of 1974, dated 15. 1974 passed by the 2nd defendant 3rd respondent herein (The Deputy Commissioner, H.R. & C.E.). The said suit was filed under Sec.70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ‘the Act’). 2. Originally the above said Deputy Commissioner initiated suo motu action to modify the scheme relating to the suit temple, of which the plaintiff claimed to be the hereditary trustee. The Deputy Commissioner sought to so modify under Sec.64(5)(b) of the said Act. The original scheme relating to the suit temple was framed according to the plaintiff, by Ex.A-3 judgment dated 21. 1924 passed by the court of the District Munsif of Kancheepuram in O.S.No.384 of 1920. That was a suit for a declaration that the plaintiffs therein were hereditary Dharmakarthas of the suit temple along with the defendants therein. There, no doubt it was held that there was no evidence as to when the suit temple was built and who built it. However, the said court found that the plaintiffs 1 to 3, 6, 8, 12, 15 and 16 therein were hereditary Dharmakarthas of the suit temple along with the defendants therein. According to the present plaintiff, the above said plaintiffs in O.S.No.384 of 1920, in whose favour, the above said decree has been given, were his forefathers. The further plea of the plaintiff is that pursuant to Ex.A-3, the then existing Hindu Religious and Charitable Endowment Board, in O.A.No.221 of 1927 framed a scheme for the suit temple by order dated 11. 1928 taking into consideration the above said decision in O.S.No.324 of 1920. The further plea of the plaintiff is that pursuant to Ex.A-3, the then existing Hindu Religious and Charitable Endowment Board, in O.A.No.221 of 1927 framed a scheme for the suit temple by order dated 11. 1928 taking into consideration the above said decision in O.S.No.324 of 1920. Further, according to the plaintiff, under clause (5) of the said scheme, the actual management of the suit temple has to be carried on by three executive trustees, one of whom shall be a member of the family of Venkatachala Mudaliar (16th plaintiff therein, who is said to be the ancestor of the present plaintiff) and that all the three trustees shall be elected by the community in the manner provided in the scheme. The further plea of the plaintiff is that the said scheme was sought to be cancelled in O.S.No.11 of 1928 on the file of District Court, Chingleput. But the said suit was dismissed and the scheme was approved and as such according to the plaintiff the scheme must be deemed to be one framed by the civil court and the above said Deputy Commissioner under the Act has no jurisdiction to modify the said scheme already framed by the court under Sec.64(5)(a) and (b) of the Act. His further plea is that under the above said original scheme, the administration of the suit temple has to be carried on by the Board of Trustees, representing 12 families referred to therein, with a special provision for the plaintiffs family, who shall always be one of the Executive Trustees to be elected by the community. This particular provision giving special right to the plaintiff’s family had been deleted in the modified scheme of the Deputy Commissioner and, therefore, the present suit has been filed after the plaintiff has failed before the commissioner also. 3. This particular provision giving special right to the plaintiff’s family had been deleted in the modified scheme of the Deputy Commissioner and, therefore, the present suit has been filed after the plaintiff has failed before the commissioner also. 3. In the suit, inter alia, the court below has found that the Deputy Commissioner has no power to modify the scheme under Sec.64(5)(b) of the Act; the said Sec.64(5)(b) runs as follows: “If the Deputy Commissioner is satisfied that any such scheme referred to in clause (a) is inconsistent with this Act and the rules made thereunder, he may, at any time, after consulting the trustee and the persons having interest, modify it in such manner as may be necessary to bring it into conformity with the provisions of this Act and the rules made thereunder.” The court below has held, inter alia, that there is no evidence in this case that the Deputy Commissioner was satisfied that the scheme already framed was inconsistent with the provisions of the above said act or that at any time he consulted the trustees and the persons having interest in the affairs of the temple before modifying the scheme. Factually also, the court below found that there were no inconsistencies as stated above. No doubt, the court below also held that there was no need to amend the original scheme because there was no complaint by the villagers that the temple was mismanaged and the scheme was not working well. The court below also held that the original scheme was that of the court and that it was conceded that when a scheme was settled by a court, the authorities under the Act had no jurisdiction to interfere. 4. No doubt, against the said judgment of the court below, there is no appeal by defendants 1 and 2. Defendants 3 to 5 alone have preferred this appeal. The learned counsel for the appellants points out that since the power exercised by the Deputy Commissioner in modifying the scheme was exercised under Sec.64(5)(b) (which according to the decision in Radhakrishnan v. Manickam, (1974)2 M.L.J. 179 , is only a suo motu power exercisable by the Deputy Commissioner where the ingredients of the said clause are satisfied. The learned counsel for the appellants points out that since the power exercised by the Deputy Commissioner in modifying the scheme was exercised under Sec.64(5)(b) (which according to the decision in Radhakrishnan v. Manickam, (1974)2 M.L.J. 179 , is only a suo motu power exercisable by the Deputy Commissioner where the ingredients of the said clause are satisfied. The plaintiff, if he wants to set aside such a scheme, ought to have alleged either in his objection before the Deputy Commissioner or in his appeal before the Appellate Authority or in his plaint in this suit that the ingredients of Sec.64(5)(b) of the Act have not been satisfied. In other words, according to him, while the plaintiff has not pleaded anywhere that the Trustees of the suit temple or the persons interested in the suit temple were not consulted by the Deputy Commissioner before he made the modification, or, that there was no inconsistency between the original scheme and the above said Act or the Rules made thereunder, the court below has erred in going into the said question and holding that such ingredients of Sec.64(5)(b) have not been complied with and that modification by the Deputy Commissioner was wrong or without jurisdiction. 5. The learned counsel for defendants 1 and 2 who are respondents 2 and 3 supports the above said argument of the learned counsel for the appellants. On the other hand, the learned counsel for the respondents 4 and 5 contends that since the said question relates to the jurisdiction of the Deputy Commissioner under Sec.64(5)(b) of the Act, there was no necessity to plead the non-consultation of the trustees or the above said persons interested, or, the non-existence of the above said inconsistency. He also argues that the original scheme was a court scheme and that the Deputy Commissioner cannot modify the scheme in the year 1971 since at that time there were no Rules stipulating the conditions and restrictions subject to which such modification could be made pursuant to proviso to Sec.64(5). In this connection he also relied on the decision in Sri Kailasanathaswami Devasthanam v. Chockalingam Chettiar, (1981)1 M.L.J. 159 . 6. I do not agree with the argument of the learned counsel for the respondents 4 and 5. But, I am inclined to accept the argument of the learned counsel for the appellants. In this connection he also relied on the decision in Sri Kailasanathaswami Devasthanam v. Chockalingam Chettiar, (1981)1 M.L.J. 159 . 6. I do not agree with the argument of the learned counsel for the respondents 4 and 5. But, I am inclined to accept the argument of the learned counsel for the appellants. It is because, the suit is to set aside the order of the Deputy Commissioner and the appellate order therein. In such a suit, the main grounds that can be taken are only with reference to the above referred to two points. So, unless the plaintiff in such a suit pleads before the Deputy Commissioner and proves that the above said ingredients of Sec.64(5)(b) were not satisfied, he cannot succeed in such a suit. On the other hand, the only plea in the plaint is that since the original scheme was court scheme, the Deputy Commissioner had no power to modify it. .7. But the law is not that the scheme framed by the court cannot be modified at all by the Deputy Commissioner. No doubt in the above referred to Sri Kailasanathaswami Devasthanam v. Chockalingam Chettiar, (1981)1 M.L.J. 159 , it was held by this Court that pursuant to the proviso to Sec.64(5)(a) in respect of certain court Schemes mentioned therein, the Deputy Commissioner could modify the scheme “only subject to such conditions and restrictions as may be prescribed” and in that case it was found on facts that at the relevant point of time, the said Rules prescribing the above said conditions and restrictions were not framed and that is why it was held in that decision that since the said Rules had not been prescribed, the Deputy Commissioner had no power to modify those kinds of court scheme. The learned counsel for respondents 4 and 5 contends that the said proviso would apply even to the present case though coming under Sec.64(5)(b) of the Act and that since in the present case also, in 1971, there were no such Rules, it should be held that the Deputy Commissioner had no power to modify the original scheme, which according to the said counsel, was a court scheme as contemplated in the said proviso. I am unable to agree with this submission. The proviso relates only to Sec.64(5)(a) and not to Sec.64(5)(b). I am unable to agree with this submission. The proviso relates only to Sec.64(5)(a) and not to Sec.64(5)(b). Only underneath Sec.64(5)(a), the proviso is found in the enactment and thereafter only comes Sec.64(5) (b). No doubt, both Secs.64(5)(a) and 64(5)(b) deal with modification of any pre-existing scheme by the Deputy Commissioner. But Sec.64(5)(b) deals with modification by the Deputy Commissioner where he is satisfied that there is the above said inconsistency. On the other hand, Sec.64(5)(a) deals with modification of any scheme. There may be even any other factual necessities for modification of a scheme and such modifications would come under Sec.64(5)(a). But though Sec.64(5)(a) is worded generally, in view of Sec.64(5)(b) providing for a particular situation as stated above, I think Sec.64(5)(a) should be held to be providing for a modification other than the modification contemplated under Sec.64(5)(b). So, in that sense, Sec.64(5)(a) and Sec.64(5)(b) are mutually exclusive. Only in the case of Sec.64(5)(a), the proviso therein will apply, that is in certain cases of court Schemes modification could be done by the Deputy Commissioner, subject to such conditions and restrictions as may be prescribed. But that qualification to the power given to the Deputy Commissioner is not there in the case of his power to modify under Sec.64(5)(b). If really he is satisfied that there is the above said inconsistency, he is free to modify the original scheme and the Legislature has not thought it fit to fetter the said power with any restrictions or conditions as contemplated in the case of modification under Sec.64(5)(a) of the Act. .8. The net result is that the observation of the court below that in view of the non-consultation as contemplated under Sec.64(5)(b) of the Act and the non-existence of the above said inconsistency, the Deputy Commissioner in the present case, did not have the power to modify the original scheme, is special pleading by the court below, unless, the plaintiff, who wants to set aside the above said order of the Deputy Commissioner or the Commissioner, pleads that the above said requirements of Sec.64 (5)(b) were not fulfilled, the court cannot go into that question. The court can very well presume in such a situation that those requirements were fulfilled. 9. The court can very well presume in such a situation that those requirements were fulfilled. 9. In the result, the judgment and decree of the trial court are set aside and the above said orders of defendants 1 and 2 respectively are upheld and the suit is dismissed. Accordingly the appeal is allowed. However, in the circumstances of the case, there will be no order as to costs throughout.